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Failing to Provide Breath Specimen: CPS Discontinue Prosecution

by | Jan 14, 2020 | Articles, Driving Offence Advice

In early September 2019 our Driving Defence Lawyers received an enquiry from Mr Jones* concerning a prosecution against his wife, Mrs. Jones. They were both professionals and Company Directors and had not had any previous dealings with the Police or Criminal Justice System before. Understandably they were very concerned about the criminal legal process and repercussions of a driving conviction. This was all new to them and they required expert legal advice and representation.

Mrs. Jones* had been arrested in Lichfield during the early hours of Sunday, 1st September 2019 on suspicion of drink driving and was taken to Watling Street Police Station near Cannock to provide an evidential specimen of breath for analysis. Mrs. Jones was unable to provide the two specimens of breath to the Police and was subsequently charged with the offence of ‘Failing to Provide a Specimen for Analysis’ contrary to Section 7(6) of the Road Traffic Act 1988 and had been summonsed to attend Cannock Magistrates’ Court two weeks later.

Mrs Jones was confused about this offence because, she remembered providing the Police with a sample of breath at the Police Station and could not understand why she had been charged with this offence instead of drink driving and was unsure of what to do at Cannock Magistrates’ Court. As far as she was concerned, she had cooperated with the Police and had provided the sample at Watling Street Police Station.

Mrs Jones formally appointed our Motoring Defence Team to represent her at the first Magistrates’ Court Hearing in Cannock. A few days after appointing us to represent her she attended our Birmingham Office to meet with one of our solicitors for a detailed face to face meeting about her case. She had many concerns and questions about the prosecution brought against her and attending Court.

Client Background

With any client that appoints us to represent them, we take the time to understand the background of each client so that we can explain how a driving offence conviction would impact upon them.  It transpired that Mrs Jones worked with her husband as a Company Director in the family business therefore, a conviction for this offence would not result in being dismissed from employment, which is often a difficulty many clients face.

The main concern for Mrs Jones was that if she was convicted of failing to provide a specimen of breath for analysis, it would damage her reputation and the stigma a criminal conviction would attract. The company she co-owned with her husband was a very successful and reputable national business which employed a substantial number of employees and she was very concerned about the negative impact a conviction would have upon her reputation and her business.

If she pleaded guilty or was convicted of failing to provide a specimen of breath, it would also attract a driving ban between 12 to 36 months and a community order to undertake unpaid work however, this would be an inconvenience, but she was in a financial position to overcome the difficulties associated with a driving ban.  

Drink Driving

Mrs Jones was unsure of why she had not been charged with drink driving. At the meeting, our lawyers explained in detail the law relating to drink driving and why the Police had charged her with failing to provide a specimen of breath.

In summary, for the CPS to secure a prosecution for drink driving they must have evidence to firstly prove that Mrs Jones was driving her vehicle at the relevant time, the Police Officers stopped her vehicle near Lichfield and were able to satisfy this element because the arresting Police Officers could give evidence on this point. Secondly if the Police are taking a sample of breath, they must take the suspected drink driver to the Police Station and must obtain two evidential specimens of breath from the detained person.

The specimens of breath are taken at the Police Station and are taken using breath analysis equipment such as a Lion Intoxilyzer machine. The Police officer will require two complete specimens of breath, the lower of the two readings will be used and the suspect will be charged with drink driving if the breath reading, they provide is above 35 micrograms per 100 millilitres of breath.

In the case of Mrs Jones, she was only able to provide one sample of breath and the reading was 80 micrograms per 100 millilitres of breath (more than double the drink drive limit) however, she was unable to provide a further reading. The Police did not have two readings in breath and subsequently charged her with failing to provide a specimen.

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Failing to Provide a Breath Specimen   

Our lawyers explained to Mrs. Jones that for the CPS to secure a conviction of drink driving against a suspect they believe to be over the drink drive limit, the CPS must have an evidential sample which proves that the motorist is over the legal limit. The Police can take a sample in breath, blood or urine however, when the Police take a sample of breath, they require two readings, because they had only obtained one reading from Mrs. Jones that would be insufficient to secure a conviction for drink driving.

This offence is designed to prosecute individuals when the Police do not have a reading or enough evidence to secure a conviction for drink driving. As an example, if a person simply refuses to provide a specimen of breath, blood or urine they will be charged with this offence.

Mrs. Jones accepted that she was over the legal drink drive limit because she had consumed a bottle of champagne whilst out in Lichfield before driving. She had not planned on driving but due to an argument with her husband that evening she drove her vehicle rather than leaving it in the car park as she had intended.

Mrs. Jones herself accepted that she was guilty of drink driving however, she was not facing a prosecution for drink driving, rather she was facing a prosecution for failing to provide a specimen.  

Reasonable Excuse Defence

Mrs. Jones accepted that she only provided one sample however, she explained that she was simply unable to provide a further sample of breath due to an anxiety attack and breathing difficulties she suffered with at the Police Station.

Our lawyers explained to Mrs. Jones that it did appear that she had failed to provide a specimen for analysis (because the Police did not have two specimens of breath) however, she did appear to have a defence.

The law does provide a defence of ‘Reasonable Excuse’. If a person charged with failing to provide a specimen has a genuine reason to explain why they were unable to provide the specimen of breath, blood or urine then they can defend the case. In this case, the reasonable excuse for not being able to provide the second sample was the anxiety attack and the breathing difficulties Mrs. Jones experienced at the Police Station. The reasonable excuse defence will usually be a medical explanation, either physical or psychological.   

First Court Hearing

One of our specialist driving offence barristers attended Cannock Magistrates’ Court with Mrs. Jones, a not guilty plea was entered, and we explained to the Court the basis for our defence and the evidence we would be relying upon at trial. The matter was then adjourned for a Direction Hearing in October before a District Judge.

Cases involving Drink Driving or Failing to Provide a Specimen for Analysis are usually placed before a District Judge (qualified lawyer) rather than Magistrates’ as such cases which are progressed to trial (challenged) involve very complex legal arguments and expert medical evidence.   

Psychiatrist Evidence

Immediately after the first Magistrates’ Court Hearing our lawyers obtained the full medical notes for Mrs. Jones and appointed a specialist psychiatrist to assess her condition and to provide a detailed assessment of her anxiety issues followed by a detailed report for the Court. The findings of the psychiatric report were:

“In my opinion, in light of her background psychiatric condition of recurrent depressive disorder, on the balance of probabilities, Mrs Jones would have been markedly vulnerable to experiencing the clinical symptoms of an acute stress reaction, which were likely to have led her to become unable to cooperate with the police and provide the second requested specimen of her breath for analysing when she was asked to do so.”

The medical report supported our defence case, in that Mrs. Jones did not deliberately refuse or frustrate the breath specimen process, instead she suffered with a psychiatric episode which rendered her unable to provide the specimen of breath, and that episode amounted to her reasonable excuse for being unable to provide the second sample of breath at the Police Station.

failing to provide a specimen

Directions Hearing

Our lawyers then attended Cannock Magistrates’ Court in October 2019 for the Direction Hearing and the Court set the timetable for the prosecution and defence to comply with so that the matter would be ready for trial. The matter was then listed for trial on 13th January 2020 at Cannock Magistrates’ Court.

Trial Preparation

A significant factor in determining the success or failure of a case listed for trial is in the preparation. Immediately after the Directions Hearing our team began meticulously preparing, the case for trial.

Part of the trial preparation process involved Mrs. Jones meeting with her defence team (Solicitors and Barristers) on several occasions to ensure that we were completely prepared for the trial and to challenge the prosecution case in a robust manner. The video footage from the breath procedure room at the Police Station was carefully examined by our solicitors and barristers and was then provided to the psychiatrist we had instructed on the case.

Police Station Video Footage

When a person is arrested on suspicion of driving with excess alcohol, they are taken to the Police Station and are then taken into the breath specimen room. This room has a CCTV camera which records the entire breath specimen process. It will show exactly what occurred in the room and what was said by anyone in the room.

The CCTV recording of the sample being taken is only released after a person enters a not guilty plea to failing to provide a specimen or drink driving.

This is a crucial piece of evidence on such cases as it will need to show that the person is genuinely attempting to provide a sample of breath.

Addendum Expert Report

Our expert witness (Psychiatrist) then also carefully considered the CCTV footage from the Police Station and provided an addendum report which concluded with:

“Having carefully watched the CCTV footage, I confirm that my opinion and recommendations would remain as the same as I have expressed in my initial report, dated 15 October 2019.


I felt that Mrs Jones’s narrative provided during my initial assessment on 01 October 2019, was fully consistent with what I observed on the CCTV footage.


In my opinion, on the balance of probabilities, following her arrest on 01 September 2019 and being taken to the police station, Mrs Jones began feeling emotionally distressed and anxious.


Whilst Mrs Jones’s initial distress could be deemed acceptable as an expected reaction to such circumstances, in my opinion, her emotions and behaviour became visibly abnormal when she was requested to provide her breath specimens.


In my opinion, on the balance of probabilities, I believe that, in police custody on 01 September 2019, Mrs Jones developed clinically significant symptoms of an ‘acute stress reaction’.


Acute stress reaction is an ICD-10 diagnosis (F43.0), which includes a transient disorder of significant severity that develops in response to exceptional physical and/or mental stress and which usually subsides within hours or days. The stressor may be an overwhelming traumatic experience involving serious threat to the security or physical integrity of the individual or of a loved person(s), or an unusually sudden and threatening change in the social position and/or network of the individual. The risk of this disorder developing is increased if physical exhaustion or organic factors are also present.


It appears that, on the balance of probabilities, the anxiety had taken over and she no longer had control. She became so overwhelmed and worried when she overheard the possibility of being imprisoned.


She stated that she desperately wanted to provide another specimen and she began to cry loudly. She stated that she was feeling frightened, ashamed and embarrassed at the time.


In summary, considering Mrs Jones’s psychiatric conditions, her circumstances at the time of the index offence, her account of the events and observing her emotions and behaviour on the CCTV records, I have no other clinical explanation for her failure to provide the specimens than the diagnosis of ‘acute stress reaction”

Trial – Monday, 13th January 2020

The defence team Mrs. Jones had appointed (Solicitor, Barrister and Psychiatrist) attended Cannock Magistrates’ Court with Mrs. Jones on Monday 13th January 2020 fully prepared to challenge the prosecution case and to defend Mrs. Jones robustly at trial.

On arrival at Court we were informed by the Court that the Crown Prosecution Service (CPS) had decided to withdraw the prosecution against her and as such a verdict of not guilty was recorded against the matter, and as a result Mrs. Jones did not receive a criminal conviction or driving disqualification.


Mrs. Jones took her prosecution very seriously from the outset and for that reason she appointed our Specialist Driving Offence Solicitors rather than appointing general criminal solicitors to defend her case.

Due to our substantial experience in defending motorists facing driving prosecutions, our lawyers robustly prepared the case and sourced the best expert evidence available and attended Court fully prepared to defend the matter at trial and to protect the reputation of our client.

In this case it was apparent to the CPS that the trial had been meticulously prepared by specialist motoring lawyers and that the lawyers Mrs. Jones had appointed possessed the appropriate skill and expertise to successfully defend the case at trial.

Had Mrs. Jones appointed non-specialist lawyers the likelihood is that she would have been advised to plead guilty, would have received a criminal record, a driving ban in the region of 28 months and a community order which would involve a few hundred hours of unpaid work.

She explained that she was delighted with the advice, representation and communication from start to finish and was thrilled with the outcome.

* Please note the names in this article have been changed to protect client identity

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